On the eighteenth of March, 1878, the parties executed an arrangement whereby the Defendant, in condition of 100 to him to be paying by the Plaintiff by way of deposit, and of a farther sum of 750 to be paying by him at the times therein mentioned, agreed with the Plaintiff to provide and cite a proper title, subject as thereinafter mentioned, and comfortably and effectually to attribute to him the lease of the premises and all his right, title, and interest therein and the grace thereof for the residue of the term then to do and unexpired therein, which was "12 and a half years at least from Lady Day next, subject to the annual rent of 150 and the operation of the covenants thereby reserved and contained.
The Defendant further agreed to have up quiet possession of the premises to the Complainant on or earlier the fifteenth day of April, 1878, and to pay certain rates and taxes, and to assign the licenses; and the Plaintiff agreed to have an appointment of the lease without requiring the output of the lessors` title or any show of title prior to the charter under which the Defendant held the premises, and would have no objection should the rent be an underlease or the premises demised form part of larger property demised by any master or early lease, and would enter upon and get ownership of the premises on or earlier the fifteenth day of April.
There were clauses in character to the requital of the 750; and the evaluation of and talk to the line of wines and liquor and other consumables, and the fixtures. And so it was further agreed that if either party should refuse or fail to do his share of the agreement, he should pay to the former of them on demand the sum of 200 as damages, "and in face of default" by the Plaintiff "the bank money to be forfeited in percentage of such damages."
The Plaintiff, on the nineteenth of March, paid to the Defendant`s agent, an auctioneer, the bank money of 100.
On the 29th of March, 1878, the Plaintiff`s solicitors received from the Defendant`s solicitor an outline of claim to the premises, and it therein appeared that the Defendant had not a term of which at least twelve and a half years from Lady Day, 1878, were unexpired, but that he held the public-house and premises under an indentation of lease dated the 24th of March, 1870, for a term of twenty-one years from Christmas Day, 1869, determinable at the choice of the lessors or lessee upon giving six months` notice before the release of the first seven or 14 years of the term; and further, there was a provision that if the lessors should take any share of the premises for construction purposes the lessee should take up such portion upon being compensated for the same; therefore it was supposed that the charter was determinable at the testament of the lessors on Christmas Day, 1883, and likewise upon certain terms at any time, should they want the whole or any piece of the premises for construction purposes.
Upon the reception of the outline of style the Plaintiff required the Defendant to give his deposit money of 100, but he refused to do so, and therefore this process was commenced, the writ being issued on the tenth of April, 1878, for an edict for the refund of the money with interest at 5 per cent. from the day of payment, and for a contract that the arrangement was void and ought to be delivered up to be cancelled, and for costs of the action.
Upon the 2nd of July, 1878, the Defendant filed his command of defence, and he therein denied the alleged representation on his part. He declared that he set in the men of his agent the lease of the premises for the use of sale; that the Plaintiff, having previously visited and examined the premises, by appointment met him at the sign of the Plaintiff`s agent, a broker and general agent, on the fifteenth of March; and that a dialogue was then gone into, and "it being then declared that twelve and a half years were" (as they in fact were) "unexpired of the original condition of twenty-one years for which the rental was granted" (but no representation as to the price or weather of the rent being made), it was then agreed between the parties that the agreement which was to be signed should not be back on either party until the Plaintiff or his agent should see or prove the lease.
The original charter and the assignments [there had been three assignments between the see of the charter in 1870 and March, 1878] were, on the sixteenth of March, left with the Defendant`s agent, the auctioneer, and the Plaintiff`s agent afterwards called at his position and take over the charter and the assignments, and the contents were discussed by them. The auctioneer then handed to the Plaintiff`s agent all the documents for him to peruse on behalf of the Plaintiff, and on the eighteenth of March, 1878, he having perused them and informed the Plaintiff of their contents, returned the cut to the auctioneer signed by the Plaintiff, and paying the bank money of 100 into his hands, and he even held the same.
There was an allegation that the care of the Plaintiff`s agent was directed to the clauses giving an alternative to the lessors to watch the lease, and that the Plaintiff was, by his agent or
otherwise, fully aware, when he entered into the contract, of the damage and consequence of them and of all the weather of the lease. And the Defendant also set off in his command of defence that he had a condition of which twelve and a half years were unexpired, and in any event he "could and would if necessary before the time special for completion, have procured the lessors or their representatives to forgo or publish the options under which the rent might be determined if required by the Plaintiff so to do," and that he at the clock when the Plaintiff repudiated the contract was set and willing to do it, and he submitted that the Plaintiff was not entitled to annul it, and that having made default he was not entitled to take the bank money to be returned. The Defendant, by way of set-off, relied upon the fact that the Plaintiff improperly refused to do the contract, and he claimed the 100 as forfeited in part payment of the 200 agreed upon as damages. There was a short correspondence between the solicitors, in the prospect that the compact could be rescinded upon terms, and further litigation prevented, but as the payment of the costs which had been incurred could not be agreed upon that answer was not arrived at; and the Defendant insisted that the Plaintiff must do his contract.
COUNSEL:
Dickinson, Q.C. and Heath, for the Plaintiff: -
This existence the sale of a public-house as a going concern, time is of the center of the contract: Day v. Luhke n(1) ; Cowles v. Gale n(2) .
The Defendant contracted to put a term certain. He could not do his contract, and it is sufficient to say that, "where a person sells an interest, and it appears that the interest which he assumed to deal was not the genuine one, as, for example, if it was for a less amount of age than he contracted to sell, the buyer may see the press at an end and bring an action _ to find any sum of money paid in character performance of the understanding for sale" n(3) .
Even if the Defendant, when the deed was objected to, could get a dismissal or release of the lessors` options, unless he could
n(1) Law Rep. 5 Eq. 336.
n(2) Law Rep. 7 Ch. 12.
n(3) Sug. V. & P. 13th Ed. ch. 8, sect. 1, p. 247.
do so before the fifteenth of April it would not avail. The path taken by the Plaintiff in putting an end to the press was not precipitate, as the decision to do so must be immediate on the uncovering of the spot in the title. To repeal at once, therefore, was the Plaintiff`s duty, and it would have been disastrous to him if he had entered upon a negotiation: Van v. Corpe n(1) ; Casson v. Roberts n(2) ; Forrer v. Nash n(3) ; Hochster v. De la Tour n(4) .
The documents which the Defendant sent for review in substantiation of his title shewed that he could not put the term contracted for at the time fixed, still he insisted that the Plaintiff should do his sign on the land that he or his agent, having seen the documents before he sign the contract, had previous knowledge, and was destined to consider what he could get without making any objection. It should be discovered that under no lot could either the Defendant or the Plaintiff have commenced proceedings to obligate the specific performance of the contract, because it was known that the Defendant could not make a 12 and a half years` lease, and that the Plaintiff could not find it. The compact being such as described, the Plaintiff is entitled to the relief asked for.
Vaughan Hawkins, for the Defendant: -
I state that upon the pleadings and facts the Complainant had no good to add this action. There was not such a misdescription in the declaration as entitled the Plaintiff to say the contract was void, and to take the issue of his money. Because the Defendant had not, at the instant when the press was signed, obtained a loss of the lessors` option, the Plaintiff determined to rescind. If the choice had been released the press would have been good, and the Defendant alleges that he could and would, before the fifteenth of April, have procured that release, but five days earlier the clock for the completion arrived the Plaintiff issued his writ in this action. The Defendant could have made a satisfactory title at the time fixed. The Plaintiff, however, would not wait, but insisted that the narrow was void on the land of misdescription. The Plaintiff having made default in
n(1) 3 My. & K. 269, 277.
n(2) 31 Beav. 613.
n(3) 35 Beav. 167.
n(4) 2 E. & B. 678.
the operation of the contract, the sacrifice of his deposit money takes effect, and he must also pay damages.
[The cases of Morley v. Clavering n(1) , Halsey v. Grant n(2) , Hinton v. Sparkes n(3) , and Leake's Digest of the Law of Contracts n(4) , were referred to.]
PANEL: HALL, V.C
JUDGMENTBY-1: HALL, V.C
JUDGMENT-1:
HALL, V.C: : -
It appears to me that the Complainant is entitled to the mind of the Court for the issue of his 100, with interest at 5 per cent. from the nineteenth of March, 1878. The start sentence the Defendant gave any instructions whatever that he could and would get rid of the lessors` option was in his command of defence; and I am not inclined to say that if this had been an activity at law prior to the Judiciary Act, that such an allegation would have enabled this Court to keep it, because this is a type of the sale and buy of a public-house and the just will of it, and the stock of wines and spirits on the premises to be interpreted at a valuation. It was, in fact, the sale and buy of a going concern, and sentence was of the burden of the contract. The completion of the press was set for the fifteenth of April, and the writ in this process was issued on the tenth of April, but look at the event from a common law point of view, and having respect to the pleadings, I see that the Plaintiff was clear from waiting till the fifteenth of April before issuing the writ. To say that the Defendant is, under the circumstances, to put the 100 in his bag and to preserve it, is altogether out of the question. In character to the statement that the Plaintiff was somewhat precipitate in issuing his writ, it may be discovered that, though the contract was signed on the eighteenth of March, the Defendant`s solicitor did not have an outline of title till the 29th of March, leaving, therefore, a really little time for its examination before the day fixed for completion. The Defendant insisted that he had a sufficient lease, and needed the Plaintiff to get what he could get; but it cannot be considered that a declaration which stipulates for a dozen and a half years` term will be quenched by giving an appointment of what, if
n(1) 29 Beav. 84.
n(2) 13 Ves. 73.
n(3) Law Rep. 3 C. P. 161.
n(4) Page 107.
the lessors exercise their option, will be only 5 years. I am of view that the Plaintiff was not destined to have what was offered to him, and thus I admit that he must be repaid the deposit money, with involvement and costs, including the costs of any witnesses who have attended in Court.
SOLICITORS:
Solicitors: Hawks, Willmott, & Stokes; William Philp.
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